JUDGMENT
The main point to be decided in this appeal relates to the character of the property held by Varada Pillai defendant No. 2. His father Vijayaraghava executed a will (Ex. B) on the 29th April 1918 under which he bequeathed the property to his sons for enjoyment during their lives. It also provided against the alienation of this property by them but contained a clause that his grandchildren could do so after the property devolved on them subsequent to his sons' death. It contained a further provision for charity as well; but we are not at present concerned with the property which was reserved for charity or with the right and duty of conducting the same.
Vijayaraghava had three sons at the time when the will was executed, Thiruvengada Pillai, Varada Pillai and Krishna Pillai, but the youngest of these (Krishna Pillai) died during his life-time. Vijayaraghava died in October 1918 and the eldest son of his Thiruvengada five years later.
Varada Pillai, the 2nd defendant, entered into a partnership with the 1st defendant and carried on business for some time. They could not pull on satisfactorily and the 1st defendant brought a suit for dissolution of partnership and rendition of accounts in the Court of the District Munsif of Dharmapuri (O.S No. 73 of 1926). A preliminary decree was passed and after the accounts were taken some money was found due to him by Varada Pillai. A final decree was consequently passed in favour of the 1st defendant. In execution of that decree he brought the properties in suit to sale and purchased them himself. The present plaintiffs 1 and 2 who are the daughters of Thiruvengada Pillai and the 3rd plaintiff who is the daughter of Varada Pillai brought the present suit asking for a declaration that they were the owners of the properties purchased by the 1st defendant and the 1st defendant had not acquired any proprietary rights in them by reason of his purchase through Court. The plaint also contained a prayer in the alternative that if Varada Pillai was found entitled to a third share of the income from the lands for his life-time subject to the liability with which the said right was burdened under the will, the 1st defendant should not get anything more than his (Varada Pillai's) right of enjoyment in a third of the suit properties during his life-time. A prayer for injunction restraining the 1st defendant from interfering with the plaintiff's possession of the suit properties was also included. The 1st defendant pleaded that the properties were the joint properties of Vijayaraghava and his sons and that the will of Vijayaraghava was for that reason invalid. The second objection raised by him was to the effect that the will was cancelled by Vijayaraghava during his life-time and the cancellation was recorded on the back of the original will. The third plea, which is really the main plea in this appeal, was that the property was taken by Vijayaraghava's sons under the will as joint tenants and devolved on Varada Pillai as a survivor after the death of his brother Thiruvengada which he was entitled to enjoy for his life-time in any case. The District Munsif of Krishnagiri held on the last two points against the plaintiffs and dismissed their suit. On appeal to the Subordinate Judge of Salem, this judgment was reversed and the plaintiff's suit was decreed. Aggrieved by that judgment and decree the 1st defendant has come up to this Court in second appeal.
As observed by their Lordships of the Privy Council in Lal Ram Singh v. Deputy Commissioner of Partabgarh(1) there is a great diversity of opinion in the High Courts in India as to the effect in a Mitakshara family of a bequest by a father of property, which in the father's hand was self-acquired, to his son. No final decision was however arrived at by them and in the absence of any such decision the view consistently taken by this Court is that the father can determine whether the property which he has bequeathed shall be ancestral or self-acquired but that in the absence of any such declaration or of any circumstances which would point to a contrary intention, it would be presumed to be ancestral. This was conceded by learned Counsel for the respondents but he urged that the presumption is rebutted by the provisions in this will which indicate that Vijayaraghava did not wish to bequeath the property to his sons as an ancestral property. Having gone through the will with him I am of opinion that there is no force in this contention. There is nothing in this document which would show that Vijayaraghava did not want the property to devolve on his sons as ancestral property. The learned Subordinate Judge, on a wrong construction of this will, arrived at the conclusion that Thiruvengada's daughters would take their father's share of the property during the life-time of their uncle Varada Pillai. Had this been so in fact, the presumption would have been rebutted and the decision of the lower Appellate Court would have been correct. But unfortunately for the respondents it is not so. There is nothing in the will to show that the property bequeathed by Vijayaraghava or any share thereof devolved on Thiruvengada's children on their father's death. The fact that the shares were not specified in the will or the right of management was not given by Vijayaraghava to any one of his sons does not point to the inference that the father did not want the sons to enjoy the property as ancestral. The fact that the sons had got a limited interest only in the property bequeathed to them would not also rebut the presumption of joint tenancy. This was held by a Division Bench of the Allahabad High Court in Suraj Prasad v. Mt. Gulab Dei(2) and this in spite of the fact that the view of that Court has been against the presumption as to the ancestral character of the property, when bequeathed by a father, which is raised in this Presidency. When a gift is made by a father to his sons the presumption of joint tenancy is stronger and it has been held to be so in a decision by a Division Bench of this Court. Janakiram Chetty v. Nagamony Mudaliar. For the above reasons I would hold that, in the absence of anything in the will which would lead me to infer Vijayaraghava's intention to be that the property should be enjoyed by them as tenants-in-common, it was enjoyed by them as joint tenants. Since one of the characteristics of joint tenancy is for the property to devolve by survivorship, Varada Pillai must be held to have, on his brother Thiruvengada's death, got the property by survivorship.
The second contention advanced by learned Counsel for the appellant was that inasmuch as the original will was not produced on behalf of the respondents, it would be presumed to have been cancelled by Vijayaraghava. The onus of proving that Vijayaraghava had cancelled his will lay on the 1st defendant. He failed to discharge that burden. The District Munsif who was inclined to raise a presumtion against the plaintiffs was not satisfied that it was cancelled by Vijayaraghava. He thought that it might have been cancelled by Vijayaraghava's sons after their father's demise. But there was no proof of that fact on the record and he should not have come to a decision on a pure surmise. Nor was this plea raised on behalf of the 1st defendant. He alleged that it was cancelled by Vijayaraghava and once the District Munsif was of opinion that this allegation was not established, he should have recorded his finding and abstained from going any further. The lower appellate Court did not also find in favour of the 1st defendant's contention although it must be admitted that the finding by the lower appellate Court on this point is not as clear as it might have been. A copy of the registered will was produced during the trial and when secondary evidence of that document was led on behalf of the plaintiffs no objection was raised by the 1st defendant on that ground. Secondary evidence was thus permitted to go on the record; and once it is found to have been admitted by the trial Court without any objection the contention in appeal on behalf of the 1st defendant as to its inadmissibility must be overruled. The lower appellate Court has given good reasons why secondary evidence should have been and was received by the District Munsif and it is quite sufficient to say that I find myself in agreement with the same. At all events there is nothing on the record to show that this will was cancelled by Vijayaraghava and in the absence of any such evidence on the record the finding must have been, as it was, against the 1st defendant.
Learned Counsel for the appellant also contended that the lower appellate Court should not have passed a decree in favour of the plaintiffs as there was nothing on the record to show that they were the owners of the property or that the bequest in the will by their grandfather was in their favour. Some objection appears to have been raised on behalf of the 1st defendant in the written statement in regard to the competency of the plaintiffs to maintain the present action but it was not pursued and the case proceeded in the lower Courts on the footing that the plaintiffs had interest in the property and locus standi to maintain the action. Had the 1st defendant been serious in regard to this contention, it is difficult to conceive that nothing should have been heard about it during the five years that this case remained pending in the subordinate Courts. It is too late now to start this case on a new basis.
I would therefore hold that a decree should have been passed in favour of the plaintiffs even if the property was found to have been held, as I have now found it to be, by Varada Pillai as a joint tenant. The lower appellate Court has given an indication in its judgment of what the decree should have been in that event. Since I am not agreeing with the lower appellate Court's finding in regard to the tenancy being in common the alternative decree suggested by the lower appellate Court appears to be correct.
The result is that the appeal is accepted to that extent and a decree is passed in favour of the plaintiffs in the terms suggested by the learned Subordinate Judge in the event of the property in Varada Pillai's hands being found to be ancestral although limited as a life estate. In view of the fact that the 1st defendant is succeeding to a large extent I would give him two thirds costs in this and in the lower appellate Court and one third costs in the trial Court.
Leave to appeal is refused.
Appeal allowed.
N.R.R